APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
533 N.E.2d 535, 178 Ill. App. 3d 617, 127 Ill. Dec. 663 1989.IL.15
Appeal from the Circuit Court of Henry County; the Hon. Edward Keefe, Judge, presiding.
PRESIDING JUSTICE STOUDER delivered the opinion of the court. WOMBACHER and SCOTT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER
On March 29, 1988, the defendant, Ralph Halsall, was found guilty in a jury trial for driving under the influence of alcohol and improper lane usage. The defendant appeals from his convictions and sentence. We reverse.
Cambridge police officer Thomas Wiley testified that on the evening of December 4, 1987, he observed the defendant's vehicle make a right turn onto an unmarked street. The defendant turned onto the left-hand side of the road so that his car was completely in the opposite lane of traffic. The car slowly drifted back into the right lane. Officer Wiley followed the defendant onto Illinois Route 81, which was marked with a center line. While within the city limits the defendant drove his vehicle once across the center line and, after increasing his speed to an estimated 70 miles per hour, crossed the center line two more times. When the defendant crossed the center line, approximately one-half of his car was over the line.
Officer Wiley said that he turned on his flashing light and the defendant pulled over. The defendant appeared to have been drinking, so the officer asked him to perform some field sobriety tests. The defendant failed the tests.
The defendant argues on appeal that he was not proved guilty beyond a reasonable doubt of improper lane usage. The defendant contends that there was no evidence that when he moved outside the lane he did so without determining that the movement could be made safely.
Section 11-709(a) of the Illinois Vehicle Code, which prohibits improper lane usage, states that a vehicle on a divided roadway shall be driven within a single lane as nearly as possible and shall not be moved from the lane until the driver has determined that the movement can be made safely. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-709(a).
There was no evidence that when the defendant moved outside of his lane he endangered himself, pedestrians, or other vehicles. Accordingly, we find that the State failed to prove that when the defendant moved outside of his lane he did so without first determining that the movement could be made safely.
The defendant also argues on appeal that the trial Judge abused his discretion in sentencing. The defendant contends that the trial Judge was predisposed against granting supervision to offenders convicted of driving under the influence and that the Judge acted arbitrarily in denying the defendant supervision.
At sentencing, after the defendant requested supervision the trial Judge made the following comment:
"I don't like to take the heat of someone else's having driven on the highways under the influence of alcohol. Why should the bench take the heat for that? The public is just upset with people driving on the highways under the influence of alcohol. And I don't see any reason why they shouldn't have a conviction for it. And if a second conviction comes up the penalty will be stiffer and third you're almost certain to go to jail when ...